Summary
In Smith et ux. v. Mississippi State Highway Commission, 183 Miss. 741, 184 So. 814, the court added, "the diminution of the value of abutting property by interference with ingress to and from it is damage within the meaning of the constitution."
Summary of this case from Baker v. Miss. St. Highway CommOpinion
No. 33443.
December 5, 1938.
1. EMINENT DOMAIN.
In proceeding for condemnation of a half-acre strip of farm land for highway purposes, evidence of loss of market value ranging from $175 to more than $2,000 held to authorize verdict awarding $400 damages.
2. EMINENT DOMAIN.
In eminent domain proceeding, where evidence of difference in market value before and after taking ranged from $175 to more than $2,000, jury could weigh all the evidence and use their best judgment concerning damages, and were not required to take either the highest or the lowest amount.
3. EMINENT DOMAIN.
In proceeding for condemnation of land for highway purposes, wherein evidence indicated that grading of adjoining strip, which was owned by railroad, made the entrance to landowner's home more difficult, instruction that jury should not allow landowners anything for the railroad's lands nor for grading or construction on such lands was erroneous (Const. 1890, sec. 17).
4. EMINENT DOMAIN.
Under constitutional prohibition against the taking and damaging of private property for public use, property may be damaged without being taken (Const. 1890, sec. 17).
5. EMINENT DOMAIN.
The diminution of the value of abutting property by interference with ingress and egress to and from such property is "damage" within constitutional prohibition against taking and damaging of private property for public use (Const. 1890, sec. 17).
APPEAL from the circuit court of Pearl River county; HON. GEORGE CURRIE, Special Judge.
Hathorn Williams, of Poplarville, for appellants.
The judgment and verdict is grossly inadequate and clearly against and contrary to the great preponderance of the evidence in the case, and it is manifest that the jury, in assessing the damages, were unduly influenced in favor of appellee and against appellants.
State v. Cloud, 116 So. 815; Kwong v. Board of Mississippi Levee Commrs., 144 So. 693; Universal Truck Loading Co. v. Taylor, 164 So. 3; Teche Lines v. Bounds, 179 So. 797; City of Jackson v. Williams, 46 So. 554.
The trial court erred in giving unto plaintiff the instruction, as follows: "The court instructs the jury for the plaintiff, State Highway Commission, that you will not allow the defendants anything for the lands embraced in the New Orleans and Northeastern Railway right-of-way, nor for any grading or construction on said lands so embraced in said New Orleans and Northeastern Railway right-of-way."
In the face of the undisputed testimony that the lowering of the grade in front of appellants' property left appellants' home and other improvements setting upon a bluff with a ditch bank for an approach, appellee obtained the above quoted instruction which peremptorily instructed the jury that appellants were not entitled to recover any damages for the injury done to their property by the lowering of the grade in front of their property and the construction of this ditch bank. This was fatal error.
Parker v. State Hwy. Com., 162 So. 162, 173 Miss. 213.
The jury told that they could not award appellants any damages for this interference with access to their property. This was likewise fatal error.
Curry v. Railroad Co., 22 A.L.R. 138.
The trial court erred in admitting testimony offered by the plaintiff over the objection of defendants and in excluding testimony offered by defendants.
The testimony referred to as having been erroneously admitted over the objection of appellants was the testimony of the witness White that the traveled part of the highway when completed would not be any nearer appellants' improvements than the traveled part of the old highway, and the further testimony of the witness White that all of the construction work which was going to be done on the highway had been completed, and the further testimony of the witness White that the five trees which belonged to appellants and which were taken by the condemnation proceedings had not been cut and could not be cut by the State Highway Commission. The manifest purpose of this testimony was to mislead the jury into believing that no further construction work could or would be done upon said highway and that said trees could not be cut and removed by the State Highway Department, and to thereby minimize the amount of damages which appellants were entitled to recover. This erroneous testimony was all admitted over the objection of appellants. In order to minimize the damaging effect of this testimony, appellants tried to show by cross-examination of this witness White that the State Highway Department could use the property of appellants taken by the condemnation proceedings, including the cutting of the trees, in any manner in which it might desire to use the same. This witness White argued, however, that the State Highway Commission was not going to use that part of appellants' property taken by appellee for any purpose except to make some drainage changes and to keep people from cluttering up the highway with signs and billboards. Just when counsel for appellants reached the point on said cross-examination where this witness White was getting in deep water on the question of whether or not the Highway Department had a right to cut these trees and to use that part of the highway taken from appellants, counsel for appellee objected to the cross-examination of this witness White on this point, and the trial court sustained the objection.
20 C.J. 768; Penn Builders v. Blair County, 75 A.L.R. 861, 862; Thompson v. City of Philadelphia, 177 So. 39; Highway Commission v. Buchanan, 166 So. 537.
In conclusion we desire to say that appellants are large taxpayers and substantial citizens of Pearl River County. They are considered some of the very best citizens of Pearl River County, and there is no way for appellee to justify and explain this grossly inadequate verdict of $400.00. In fact, the only explanation to the verdict is that the jury was actuated by prejudice or passion or some other improper influence.
Davis v. McDonald, 178 So. 467.
We submit that it is also spoliation to take a part of a man's property and damage the remainder and force him to accept a grossly inadequate sum therefor. And it is as much the duty of the court to see that verdicts are not grossly inadequate as it is its duty to see that they are not excessive.
E.R. Holmes, Jr., Assistant Attorney-General, for appellee.
The damages are not inadequate.
State Highway Commission v. Day, 180 So. 794; State Highway Commission v. Randle, 179 So. 273.
The instructions were properly given.
Schlicht v. Clark, 114 Miss. 354, 75 So. 130; State Highway Commission v. Brown, 176 Miss. 23, 168 So. 277; State Highway Commission v. Chatham, 173 Miss. 427, 161 So. 674.
It is unquestionably true that neither general benefits nor general damages which are sustained alike by all of the general public may be considered by the jury in arriving at their verdict.
The lower court did not err in sustaining objections of appellee or overruling objections of appellants.
Argued orally by E.B. Williams, for appellant.
Highway No. 11 in Pearl River county was being rebuilt and paved. To carry out its purposes, the highway commission was acquiring a right-of-way 100 feet wide. To that end it sought to condemn a strip of land belonging to appellants 850 feet in length north and south by 50 feet wide on the north end and 23 feet wide on the south end, consisting of a little less than one-half an acre in area. An Eminent Domain Court was authorized under the law for that purpose. The jury of that court returned the verdict for appellant in the sum of $1,850. Judgment was accordingly entered. From that judgment, the highway commission appealed to the circuit court. The trial there resulted in a verdict and the sum of $400. From that judgment appellants appeal to this court.
Appellants' farm and home consist of about eighteen acres. Their home and the houses and structures connected therewith are located on a part of the tract 350 feet north and south by 127 feet east and west, facing Highway No. 11 on the east. The improvements thereon consist of the following: Their home, a storehouse, barn, smokehouse, outhouse, privy, corncrib, garage, filling station, another residence, and fences. The west line of the old highway was approximately 35 feet from appellants' east line. After taking the strip of land in question, it is only about ten feet from the west line of the new highway. On the land taken there were at least three, if not five shade trees. The space between the west line of the old highway and appellants' east line was owned by the N.O. N.E. Railroad Company. The highway commission acquired that for the purposes of the new highway. In grading this railroad space the entrance to appellants' home according to some of the evidence, was made more difficult.
The evidence as to the market value taken away from appellants' property by the condemnation of the piece of land in question ranged from $175 to more than $2000.
One of the main grounds of appeal is that appellants should be granted a new trial by this court, which the trial court refused because of the alleged gross inadequacy of the verdict. Although the evidence would have justified a verdict in a somewhat larger amount, we are of the opinion that the contention is without merit. It was a question for the jury. As stated the evidence as to the market value before and after taking ranged from $175 to more than $2000. The jury was not required by law either to fix the highest or the lowest amount. They had the right to weigh all evidence and use their best judgment as to the damages.
Appellants assign and argue that the following instruction given the highway department was error: "The court instructs the jury for the plaintiff, State Highway Commission, that you will not allow the defendants anything for the lands embraced in the New Orleans and Northeastern Railway right-of-way, nor for any grading or construction on said lands so embraced in said New Orleans and Northeastern Railway right-of-way." It will be observed that by the instruction the jury were told that they could not award appellants any damages on account of construction work done on the railroad property. As stated the evidence tended to show that such construction made appellants' property less accessible to the highway; that the approach was rendered more inconvenient. This was error. Section 17 of the Constitution prohibits both the taking and the damaging of private property for public use. It may be damaged without the taking. Parker v. State Highway Commission, 173 Miss. 213, 162 So. 162. The diminution of the value of abutting property by interference with ingress and egress to and from it is damage within the meaning of the Constitution. Curry v. Railroad Company, 87 W. Va. 548, 105 S.E. 780, 22 A.L.R. 138.
With the evidence so conflicting as to the damages that instruction may have been influential with the jury in fixing their verdict; it was calculated to have that effect. We do not think the other assignments of error are of sufficient merit to call for a discussion by the court.
Reversed and remanded.